As part of the Commission’s four-yearly review of modern awards[1], the Full Bench of the Fair Work Commission (FWC) recently handed down a number of decisions[2] which have the effect of inserting a model casual conversion clause (Model Clause) into 84 Modern Awards[3] from 1 October 2018.  This provides “regular casual” employees the right to request to convert their employment to permanent full-time or part-time.

The other 28 Modern Awards that already contain a casual conversion clause prior to 1 October 2018 will remain unchanged.

Who can request for casual conversion?

The Model Clause provides a framework under which employees are entitled to request to convert their employment from casual to either permanent part-time or full-time, in certain circumstances.

The entitlement arises if the employee is a “regular casual employee” within the definition provided in the Model Clause.  This requires the employee to have, in the preceding 12 months, worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of the Modern Award.

When can an employer refuse the request?

In the event that an employee is a “regular casual” employee for the purpose of the Model Clause, the employee is not provided with an automatic right to be converted to permanent full-time or part-time employment.  The Model Clause allows employers to refuse a request on “reasonable grounds”, including any of the following:

• It would require a significant adjustment to the employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of the Award. That is, the employee is not truly a regular casual employee under the Award.
• It is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months.
• It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months.
• It is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

For any ground of refusal to be reasonable, the employer must base the reason on facts which are known or reasonably foreseeable at the time the decision is made.